Sunday, April 22, 2007

Tort and Liability of Public Bodies.

Right now I should be using my precious time to study for my Tort tutorial tomorrow. However, my mind keeps wandering and I can't seem to focus on the liability of public bodies! Tort, which in civil law systems often is called 'non-contractual liability', is, in any case, an area of law which I'm very uncomfortable with. I guess I can identify three reasons for this dislike.

First, while tort does rely on statutes, judge-made law seems to dominate. This is true whether the tort is Negligence, False Imprisonment, Trespass to the person, Trespass to land, Trespass to goods, Occupiers Liability, Misfeasance in public office, Slander or Libel (to mention just a few of the 70 or so torts that are thought to exist).

Secondly, Judges, in the formulation of tort law, are too willing to strain the law to fit into what they intuitively think is the right outcome of the case in front of them. This is most clearly evident when the case concerns purely economic or psychiatric harm. A good example of this is Lord Denning's statement in the 1972 case of Spartan Steel and Alloys v. Martin:
'Sometimes I say "There was no Duty". In others I say: "The damage was too remote". So much so that I think it is time to discard those tests that have proved so elusive. It seems to me better to consider the relationship on hand, and see whether or not, as a matter of policy, economic loss should be recoverable.'
Thirdly, tort is fundamentally a capitalistic and materialistic concept. Although different torts have different aims, for example to compensate the victim of a negligent act for the damage caused by the act, the underlying idea of torts is that the best way to correct undesirable behaviour is to impose financial liability on the individual or body committing the wrongful act.


At 23 April, 2007 14:48, Anonymous Kiersten said...

While I feel like a light weight every time I read something that you have written about law, I must comment anyway. :-) Even though I'm only familiar with the tort on a very basic level, I totally agreed with everything you said. I was amening the whole way, until I got to the end, where surprise, surprise, I had to disagree. I'm not just saying this because historically, Democrats have been against any kind of tort reform, but also because, tort seems to be based on the whole concept of sticking it to the man for the little guy.

For example, with regards to big business, while I do think that they need to be responsible and not tell lies about their product etc., I think that people need to be take personal responsibility for their own actions. How many of us realize that if we go to McDonalds every day to eat every meal that we will get fat, and yet there are people who want to sue Micky d's for this very reason. This seems like a very uncapitalistic point of view, since I believe capitalism encourages personal responsibility.

At 24 April, 2007 14:55, Anonymous kiersten said...

Hey Torsten

This has nothing to do with this blog, but I just wanted to know what you thought about the Darfur situation. I heard this morning on the news that John Edwards is calling for the United States to do something about it. I was wondering if this was just a democrat thing or a worldwide sentiment.

This has bothered me for awhile as to why we should be the ones to come up with a solution. Then it occurred to me this morning that maybe I was misreading what other countries think. I sometimes, unjustly I guess, lump world sentiment in with the democrat party, when in reality the rest of the world may not feel the same way.

Anyways, I guess I'm mostly wondering, is the rest of the world looking to us to do something about the atrocities going on over there? Or do they see this as something where the U.N. Should do more? I have to admit sometimes I feel like United States should become isolationists again. It doesn't seem like anyone is happy with us no matter what we do, and that the rest of the world wants to blame us for all of its problems. We either do to much or to little. That is why I was curious what the feeling was over there. Anyways... Sorry that I got off topic with your blog. Just curious.

At 24 April, 2007 19:29, Blogger Torsten Pedersen said...

Kiersten, you have a good point concerning Tort standing up for the 'little guy'. I would still argue, however, that it does this in a capitalistic paradigm.

I wouldn't say that capitalism necessarily encourages personal responsibility. Rather capitalism believes that the optimal utility is achieved through free economic choices by free economic actors. Tort law supposedly ensures that the true costs of a such choices are paid by the those gaining the utility of the choices.

For example, A is a producer of soft drinks. A doesn't make the necessary arrangements to ensure that nothing unwanted can get into the bottles of soft drink during the brewing process. A sells his drinks to B who runs a cafe. C buys a bottle of A's soft drink from B, which unbeknown to B or C, has a decomposed snail in it. C gets sick.

The choice A faces in this case is whether or not to incur expenses to make the brewing process safe. The utility for A in making the process safe is not being liable in tort, whereas the utility for not making the process safe is saving time and money.

The capitalist will argue that the optimal utility for society will only be reached when A's choice includes all economic costs of that choice. These costs includes the of harm to C from the decomposed snail. Unless tort will holds A liable, the cost of choosing not to make the brewing process safe will 'paid' by C, instead of A. That's why tort is fundamentally capitalist, it tries to ensures that the cost of A's choice is incurred by A who has the utility of the choice.

The question is, of course, how do you ensure that right allocation of cost is made. The McDonald's case was an attempt to place the cost (obesity) on to McDonald's who had the utility of profit, whereas the Plaintiff's had had the utility of eating Big Macs. Most would agree that the Plaintiff's had made a free economic choice and McDonald's therefore shouldn't incur the cost. Wasn't the case dismissed by the judge anyway?

p.s. the facts of the above example are from the most important case in English tort law: 'Donoghue v. Stevenson'.

At 25 April, 2007 11:06, Blogger Torsten Pedersen said...

Concerning Dafur. It is with some embarrassment that I have to admit that I haven't paid much attention to what is happening in Dafur. This is partially to do with the lack of media coverage, but I cannot use that as an excuse.

The political comments I have heard or read have tended to criticize the west as a whole for its lack of action. This criticism is not particularly aimed at the US, but just as much on the EU and UN. The only particular critique of the US and Bush administration I've noticed is the argument that Bush's inaction on Dafur shows that his generally interventionist foreign policy is not founded on humanitarian concerns.

I can understand your frustration concerning criticism of the US, and it is true that mainstream European opinion often is close to Democratic positions. Democratic Presidents are generally very popular in Europe, whereas Republican Presidents are generally disliked. Its often a question of style and rhetoric, as well as policy. When Republicans invoke 'manifest destiny' rhetoric and put God and nation into the same sentence it scares many Europeans.

Concerning present criticism, the Bush administration has done almost everything possible to alienate Europeans and never made a convincing argument for war against Iraq. That is why so much criticism has come from Europe toward the US and Bush in particular. Remember, however, that many European Nations (such as the UK, Denmark, Netherlands, Italy, Spain and Poland) participated in Bush's Iraq war, and that Nato (including Germany, France) are engaged in the fighting in Afghanistan.

At 26 April, 2007 15:41, Anonymous Kiersten said...

I hope that you know I did not mean to imply by my statements about the Darfur situation, that Europe has not done its part in Iraq and Afghanistan. My frustration was more about criticism that we were “war mongers” in Iraq, and that we had no right to interfere. Then to turn around and say that we needed to use our military some where else, seemed like a double standard. I'm relieved that it is only the Democrats that expect us to police every situation. Also I'm not saying that nothing should be done in Darfur, only that I was upset by my impression, of the seeming double standard of Europeans.

I agree that the Bush administration does not do a good job in communicating about much of anything. As much as I respect Bush, he is not a good communicator. That goes for almost everything that he has tried to get done in his foreign policy and domestically.

With regards to your original blog, I can understand your point. As much as I think that tort at times has turned into something else, after reading your statements your case example the original intent does seem rather capitalistic.

When I think of tort right off the top of my head, I think of all of the crazy lawsuits that people file just to get money. Lawsuits that even when they don't go to court, cost everyone money, whether they get dismissed or settled out of court. Of all the extra money companies are forced to spend on thinking up ways that people might use their product improperly and sue them, thus increasing the cost of goods. About the McDonald's case it very well might have been dismissed. It was the first example that came into my mind of the ridiculous way people try to blame big corporations for their bad choices in life, so that they can get money from the corporation.


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